Home sweet home – new remote working law adopted

From 1 January 2021, Russia-based employers must comply with new requirements regarding their remote employees. The amendments to the Labour Code triggered by the COVID-19 pandemic significantly change the work management of many companies. This article highlights some of the new rules and provides employers with guidance on their next steps¹.

Introducing remote working

The amendments² to the Labour Code provide for remote working:

• during disasters, pandemics and other dangerous circumstances. In such cases, employers may order employees to work remotely until life returns to normal. Article 312.9 of the Labour Code requires that employers:
  • explain the reason for switching to remote working;
  • compile a list of remote employees (eg, by names or job titles); and
  • set out the remote working period, reporting procedures and working hours; and
• where there is a mutual agreement between the employer and an employee on remote working on a permanent basis or for a fixed term up to six months (Article 312.1 of the Labour Code). In addition, remote and office days and hours may be combined in the work schedule. The relevant clauses must be specified in the employment contract or an addendum thereto. The employment contract should be executed either on paper or as an electronic document signed with enhanced digital signatures. The same rule applies to apprenticeship agreements and in several other cases.

Organising business workflow

The new Article 312.3 of the Labour Code states that employers and employees must either use digital signatures or apply some other methods for their work-related communications.

Digital signatures

Employers and remote employees may use any type of digital signature existing in Russia for the routine exchange of documents (eg, work tasks, results, notes and reports). For instance, a professional signature automatically appearing at the end of emails may be regarded as a simple digital signature, provided that the employee accesses their corporate mailbox with the credentials issued by their employer. Employers must:

• establish an IT system to support simple digital signatures or reconfigure the existing IT systems;
• adopt an internal policy on how to use it; and
• specify the signatory identification rules and non-disclosure undertakings in the employment contract or another agreement concluded with each remote employee according to Article 9 of the Federal Law on Electronic Signature (6 April 2011, 63-FZ).

If a company prefers to use more reliable encrypted (certified or non-certified) digital signatures, it must equip employees with the relevant software and hardware at its own expense and comply with some other requirements of Russian law. In several rare cases, the use of an encrypted certified digital signature is a must.

Other methods of communication

Employers and remote employees may liaise without digital signatures, provided that their method of communication logs the receipts of documents. For instance, they may chat via a messenger or use professional team management software. Phone or video calls are a good choice for discussing business tasks, but employers should not use them for communicating official work-related matters that must be documented according to law or common practice (eg, giving a redundancy notice).

Allocating equipment

Employers must provide remote employees with software, hardware, information security tools and other equipment at the employer's expense and inform the employees of work safety rules. Employees may use their own equipment (including software) or lease it subject to a compensation of expenditures. Employers should either approve or at least be aware of such use. In the latter case, there are risks of unjustified expenditures and threats to information security because the law does not explain what employers' awareness should mean in practice.

Working hours

Pursuant to Article 312.4 of the Labour Code, if employers and employees forget to agree on the working days and hours, employees have the right to choose them themselves. Employers may call fixed-term remote employees back to the workplace for fixed periods if this procedure is pre-agreed. The Labour Code does not establish this right for permanent remote working and, therefore, it is likely that such employees can be brought to the workplace only by their consent.

Documenting remote working conditions

Employers and employees may agree on the following in their employment contract:

• the methods of communication;
• equipment supplies;
• the amounts of compensation for an employee's use of their own property;
• a work timetable; and
• other matters.

A problem may arise if employers decide to upgrade equipment or change other pre-agreed working conditions. Employers may unilaterally change employment contracts with any employee (remote or office based) only for "reasons connected with organizational or technological working conditions" and subject to two-months' prior written notice (Article 74 of the Labour Code). If an employee rejects the changes, the employer must offer them all available vacant positions and dismiss the employee if they reject all proposals. This procedure existed before the amendments and it remains unchanged. Based on recent case law, employees often dispute unilateral changes to their contracts in the courts.

To ensure more flexibility for employers, employers should specify the detailed remote working conditions in internal policies (ie, 'local normative acts') adopted by the company in all cases where possible and refer only to these policies in employment contracts. The policies on remote working must be negotiated with the primary trade union body operating in the company, if such body exists.

Dismissing remote employees

Under the new Article 312.8 of the Labour Code, employers can dismiss a remote employee if they do not liaise with the employer on issues connected with their work function without a valid excuse for more than two consecutive business days from the day of receipt of the employer's request. According to the previously known case law on dismissals, the courts usually put the burden of proof on employers. With regard to remote employees, it may be difficult for employers to validate their excuses given that employees can lose touch with the employer and their actual location may be unknown.

Such dismissal will be unlawful if an employee responds onсe in the two days following the employer's requests, but they do not actually perform work functions. If this happens, the employer may dismiss the employee for misconduct under a more complicated and time-consuming procedure.

Permanent remote employment may be terminated if an employee relocates to a different place and, for this reason, they become unable to perform work duties under the previously agreed conditions (eg, changing time zones).

Employers' liability

The amendments introduce no new liability measures for breaching the Labour Code. In most cases, failure to follow the remote working rules may lead to a fine of up to:

• Rb50,000 (approximately $700) for a company; or
• Rb5,000 (approximately $70) for the company's responsible managers (usually, the CEO and HR).

A repeated failure may lead to a fine of up to:

• Rb70,000 (approximately $900) for a company; or
• Rb20,000 (approximately $300) or a court injunction to hold managerial positions (disqualification) for up to three years for the company's responsible managers (Articles 5.27(1) and 5.27(2) of the Code of Administrative Offences).

Russian law establishes different fines for some specific cases (eg, a failure to execute the employment contract properly). In addition, the revealed breaches and employees' complaints may result in frequent (ad hoc or regular) supervisory check-ups of the company by the state labour inspection.

Guidance for employers

The new rules will help employers to minimise costs and attract skilled professionals, no matter where they live. To get the most of remote working, employers should begin with auditing their IT systems, including remote connection channels and security tools. It is a good time to draft new HR and legal documents, such as the internal policies and addenda to employment contracts, paying special attention to the following issues:

• internal procedures on the use of digital signatures and other communication instruments under Russian law;
• equipment supplies and compensation, working days and hours and workplace visit rules for remote employees;
• non-disclosure undertakings and security check procedures;
• communication with remote employees and within project teams, including:
  • assigning work tasks;
  • delivering work results;
  • reporting;
  • evaluating performance; and
  • acting in emergencies; and
• documenting fixed-term remote working caused by COVID-19 by adopting a detailed internal policy containing:
  • a list of remote employees;
  • the remote working period; and
  • other mandatory details.

1. This article is for reference only and does not contain a comprehensive description of the amendments to the Labour Code.
2. Federal Law on Amendments to the Russian Labour Code Regarding the Regulation of Remote Work and Temporary Transfer of an Employee to Remote Work at the Initiative of the Employer in Exceptional Cases (8 December 2020, 407-FZ).